Legal risks arise as furloughed employees return to work

As COVID-19’s impact subsides, workplaces have begun phased reopenings in compliance with state and local laws. We hope the development is a sign of better times ahead. As employers prepare to return to “normal” operations, however, they will likely face a number of practical and legal challenges they haven’t previously encountered. One such hurdle is returning furloughed employees to the workplace.

First, a clarification

Throughout this article, we’re using the term “furloughed employees” to encompass both furloughed and laid-off workers. While the legal issues related to recalling the two groups of workers are the same, it’s important to note the mechanics of putting them back on the payroll are very different:

• Furloughed employees were placed on temporary unpaid leave. When you’re ready to call them back, you simply notify them to return to work on a certain date.
• Laid-off employees, on the other hand, were terminated. The process of recalling them is similar to hiring a new employee.

Areas of potential legal risk

If you’re returning all furloughed employees to the positions they held before the shutdown or cutback and at the same rate of pay, there will be little legal exposure. That rosy scenario isn’t likely to happen, however, given the staged reopening required in most states and the pandemic’s economic impact on certain industries. Under the best circumstances, you’ll bring employees back in waves until the business is fully operational again and they can return to their prepandemic wages.